Monday, March 9, 2009

Terror-War Fallout Lingers Over Bush Lawyers

Where are the Bush lawyers now? Far away from the reins of government, it is to be hoped.

When John C. Yoo, a former Justice Department lawyer, was selected by President George W. Bush in May 2004 to join a government board charged with releasing historical Nazi and Japanese war crimes records, trouble quickly followed.

The Abu Ghraib torture scandal was exploding, and fellow panelists learned that Mr. Yoo had written secret legal opinions saying presidents have sweeping wartime power to circumvent the Geneva Conventions. They protested that it was absurd to name Mr. Yoo, who they believed might have sanctioned war crimes, to a war crimes commission.

Secret? The Geneva Conventions are the core of international humanitarian law. One might suppose wartime is precisely the time to observe the Conventions.

White House officials canceled the appointment, though it had already been announced in a news release, and kept the episode quiet. “We saved them from incredible embarrassment,” said Thomas H. Baer, one of the dissenting panelists.

Where Are They Now?Interactive Feature Where Are They Now?

The Obama administration last week began releasing more secret memorandums written by Mr. Yoo and others that made such wide-ranging claims about presidential power that Senator Arlen Specter, Republican of Pennsylvania, called them “shocking.”

Specter is hardly my favorite. He seems to have leeway in foreign policy matters, but mostly conforms to the Republican line in most matters.

“I think the legal profession in the United States has been seriously hurt by their conduct,” said Stephen Gillers, a professor of legal ethics at New York University. He called the disputed legal opinions “sloppy, one-sided and incompetent” and added, “There has to be accountability.”

Are the opinions well written? Or were they conveniently written?

Mr. Yoo declined to comment. But in a March 7 opinion column in The Wall Street Journal, he defended his recently disclosed work and warned that the Obama administration risked harming national security if it punished lawyers like himself.

He hides behind specious arguments. Good legal work is its own best defense.

For some of Mr. Bush’s lawyers, the most likely consequence may be wariness from potential employers. The former White House counsel and attorney general, Alberto R. Gonzales, for example, has not found a job since resigning in 2007 amid accusations that he misled Congress about surveillance without warrants and the firing of United States attorneys. He recently told The Wall Street Journal that the controversy surrounding him had made law firms “skittish” about hiring him, calling himself “one of the many casualties of the war on terror.”

What a crock.

But Mr. Richman, of Columbia, said any punishment against Bush lawyers is unlikely unless e-mail messages or early drafts turn up proving that they blatantly altered their legal conclusions to fit a policy agenda. Mr. Richman said that would be unlikely for Mr. Yoo, who had pushed an aggressive theory of presidential power long before the administration recruited him.

“The selection of Yoo was putting in place someone where you sort of had an idea what he would say,” Mr. Richman said. “Most academics are in the center of most things, but there are some outliers. And he was an outlier.”

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